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| Issue 83 (vol. 10, #7): published by The American Society Of Journalists And Authors November 28, 2003 Free subscription/unsubscription instructions at the end. Contents:
* Quitting before the finish line
******************************* A writer recently asked our help in negotiating a contract. She won a change in one part of the contract that was important to her, but on hearing about this success, we wondered about the other suggestions we had made and asked if she had tried for them. Here is her answer: "This is not material I'd ever use, so retaining the copyright would make no difference to me." If the Contracts Watch staff only had a dime for each time we've heard this, we could split the pot and still fund our lives of independent leisure. Writers often face a time when a publisher wants to own copyright and the topic seems out of the mainstream and certainly safe for some slacking. We actually think that the writers are afraid to press for what makes sense for their businesses. But think for a moment - this is intellectual property. It doesn't matter whether you can do something specific with it: the question, as always, is what others can do with it. Do you think that a magazine asks for copyright - or all rights or even non-exclusive rights bundles - for no reason? The publishers want the rights because they think they can make more money. In virtually every other industry where intellectual property is the product, the creators want a slice of the pie. Some composers have established fortunes on a few hit songs because every paid use directs a percentage of the income back. Stores may sell software from Microsoft, but the company would never let a Wal-Mart or Circuit City sublicense Office or Windows to other companies. Photographers expect additional monies from a magazine that wants to use an image in a book as well. A story may not seem valuable to you because you find it unimportant. What is crucial to understand is that the article might have value to others. You retain ownership because an article or book might suddenly have a monetary worth beyond your wildest flights of avarice. If only you could know which articles would offer additional remuneration, you could insist on keeping rights for them and forget about wasting time in negotiations on the others. Unfortunately, you cannot tell in advance which articles have the potential. That is why you need to keep the rights to all of them.
******************************* It is the value to the intellectual property of writing that drives greedy publishers to grab, grab, grab. For some reason, we have always preferred out-and-out thieves to con artists, thinking that the latter only add insult to injury. Now, it's not that we'd accuse anyone at the New York Post of conniving, but we did find a letter, forwarded by a writer and apparently sent to contributors for about a year, to be, well, less than straightforward. In this letter, the company insists that it needs to make freelance articles available in the usual third party databases as well as newsstand.com and nypost.com, and only those writers willing to agree to this could work for the publication. To make this possible, the letter refers to the paper's freelance journalist agreement. However, that agreement is a work made for hire (WMFH) contract, not something that is granting the mentioned online uses. (Lest we forget, the Post could also pay writers for additional uses, just as it likely would insist on additional payments for additional uses by its licensees.) So, yes, the Post gets the rights it claims to seek - and it also gets all other rights, leaving the journalist without the legal right to even be considered the writer. We know that the Post has trouble with simple arithmetic, as it continues to endure annual losses in the tens of millions of dollars, according to its editor. Don't let someone from the paper tell you that the transfer of rights adds up.
******************************* Even when it seems that a publisher may be paying for rights, you might find the currency devalued. A writer recently sent us a Details contract. We had our reservations about a number of things: a three month exclusivity that effectively stretched to six, because the writer would have to ask permission to reprint the piece in a second three month period; a need to add "to the freelancer's knowledge" to the indemnity clause. But we do applaud the willingness to share the income from reprints, syndication, and licensing. Still, Details follows a trend we've been seeing, which is paying less than 50% of the revenues and calculating on the net instead of the gross. On the percentage, we've thought that fair would split the money down the middle. If someone is going to get more, it should be the owner of the rights, the writer, because the magazine is acting like a sales agent, and since when do commissions run over 50%? Yet half for the magazine does seem reasonable, since its name helps drive further placements. So 50-50 it is. What is the problem with net, though? Because that means the money left after expenses, without specifying what those expenses are, as opposed to the gross, which is the total money that comes in. Just what is included in those expenses? Internet costs for sending the piece out? Commissions to in-house salespeople? Miscellaneous handling fees? Office space and lighting? Who knows? You can see the potential for the writer's share shrinking, especially at bad economic times, when there is a premium on supporting the bottom line. Publishers looking to make money from someone's intellectual property should be content with 50% of gross revenues. Certainly they have costs of doing business - as do writers. Will some part of the author's utility bills, insurance, and capital expenses also be covered by the same gross amounts that pay for the publisher's expenses? Unlikely, and the publisher would probably say that these are costs of doing business. Exactly our point - the publisher has costs of doing business, and that is what tax deductions are for. Why should the publisher recoup the expenses from the writer and then declare them as expenses again?
******************************* Trends not only happen among publishers, but among writers and, in a similar manner, not always for the best. We recently began to notice how often freelancers ask each other for details on how a particular publisher is willing to change a contract. On the surface, it seems like a reasonable request: why reinvent the wheel when you know what someone else has received? We would actually suggest that the focus is generally a bad one for writers. The presumption is that forewarned is forearmed, and certainly the extra information can't hurt. You can bet that the Contracts Watch staff members look for all the inside scoops they can get before pitching a new editor. Yet when it's time to call and start negotiating, it must be a solitary activity. Obviously you cannot trade on a contact's name and tell an editor, "Oh, Jill Smith provided me with the details of her contract," but there is actually a bigger problem. We find that writers are often happy to ask for only what others have received, and not push for more. As we have said before and will undoubtedly admonish again, trying to find an easy way through contract negotiations is business suicide. Negotiating contracts is an integral part of any business, including freelance writing. To limit yourself to what people "have gotten away with" is to assume that others have identified all the important issues, and that anyone you talk to is at least as good at negotiating as you are. Our experience suggests otherwise. At the risk of a generalization, most writers are poor at negotiating. You cannot depend on what others have been able to achieve; your success comes down to your efforts. To put it more plainly, go through the damned contract - with help, if necessary - and ask for everything you can think of. You are at your strongest negotiating point when the editor wants your story, and if the publication won't negotiate at all, maybe doing business with it is a bad idea. Request every single change that you consider worthwhile. If more writers asked for every worthwhile contract change, then more publishers would face pressure to improve their agreements. And that could only be a benefit to all.
******************************* A book author sent a copy of an agent agreement. One thing we noticed was that the agency wanted to charge a flat rate - either $250 or $350, depending on the number of manuscript pages - for such expenses as photo copying and mailing, though only if the agent successfully placed the manuscript. In either case, that seems high from what we've seen in the business. For those looking at working with an agent, we'd suggest asking for a reasonable cap - $150 is a suggestion that one agent we know offered. Any further expenditures would require your authorization. It is a reasonable change to request, and one that might save enough for a modest night out on the town.
******************************* The ASJA Contract Committee has speakers available on the subject of contracts. (Did you think we would say fly fishing?) We can't make any guarantees - these people donate their time to this cause that they consider worthy, and they all must make a living - but if you'd like someone to come speak to your group, write us through www.asja.org/contact.php. Got a question or a contract? Fax questions or contracts to: 415-532-1324 (include phone, email, for any response) Send email to us through www.asja.org/contact.php. The American Society of Journalists and Authors encourages reproduction and distribution of this document for the benefit of freelance writers and photographers, and other publishing content creators. Reprint or post as many items as you wish, but please credit ASJA for the information and don't change the content. Thanks to Editorial Photographers (EP - www.editorialphoto.com) for periodic information on photographers' contract issues and the Graphic Artists Guild (GAG - http: //www.gag.org/contracts/contracts.html) for information about illustrators and contracts.
Contracts Committee
ASJA Home Page: http://www.asja.org
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